Date: 01-07-2002

Case Style: Mark K. Patton, M.D. v. Lynn Jacob Cox

Case Number: 00-15537

Judge: Harlington Wood, Jr.

Court: United States Court of Appeals for the Ninth Circuit

Plaintiff's Attorney: Charles E. Buri of Friedl, Richter & Buri, P.A., Scottsdale, Arizona, for the appellant.

Defendant's Attorney: Foster Robberson and Susan M. Freeman of W. Todd Coleman, Lewis & Roca, LLP, Phoenix, Arizona for the appellee.

Description: In this diversity action, we must decide whether a witness in a state quasi-judicial proceeding is immune from a breach of contract action arising out of his testimony.

I.

Dr. Mark K. Patton practices medicine in Arizona. He and his former wife, Shellie Trembath, divorced in 1994 and are embroiled in a bitter and protracted child-custody battle, which is taking place in a Utah state court. In December of 1996, Trembath asked the Utah court to order Dr. Patton to submit to a psychological evaluation by Dr. Cox, who prac-tices psychology in Texas. The Utah court granted her request and issued the order. Dr. Cox evaluated Dr. Patton in Texas in January of 1997. Before the evaluation began, Dr. Patton asked Dr. Cox to keep the results of the evaluation confiden-tial; the parties dispute whether Dr. Cox agreed to Dr. Pat-ton's request. It also appears that before evaluating Dr. Patton, Dr. Cox had a therapeutic relationship with Trembath, her new husband, and Trembath's sister -- Dr. Patton's former sister-in-law, the latter of whom alleged that Dr. Patton had engaged in improper sexual conduct with her. As a result, the Arizona Board of Medical Examiners ("BOMEX") filed a complaint, charging him with unprofessional conduct and unfitness to practice medicine.

The complaint against Dr. Patton was heard by an Adminis-trative Law Judge in Phoenix in May of 1998. At the BOMEX hearing, Dr. Cox voluntarily testified as an expert witness on behalf of the State of Arizona. Both his testimony and his pre-trial communications with the state Attorney General revealed the results of his examination of Dr. Patton -- namely, he believed that Dr. Patton was a pedophile and a danger to chil-dren. Dr. Patton subsequently sued Dr. Cox for breach of con-tract, promissory estoppel, and infliction of severe emotional distress.

The district court found that absolute witness immunity precludes any liability arising from the testimony and pre-trial proceedings of a quasi-judicial hearing. Accordingly, it granted Dr. Cox's motion to dismiss for failure to state a claim upon which relief can be granted. Dr. Patton timely appealed.

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This is a diversity action under 28 U.S.C. § 1332. When a federal court sits in diversity, it must look to the forum state's choice of law rules to determine the controlling substantive law. See Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496 (1941). Because this suit was filed in the District Court of Arizona, we look to that state's choice of law rules. Ari-zona courts follow the Restatement (Second) of Conflict of Laws (hereinafter "Restatement") as a guide in choice of law questions. Lucero v. Valdez, 884 P.2d 199, 201 (Ariz. Ct. App. 1994). The Restatement § 6 sets forth several relevant factors in determining which law to apply, including: (1) the needs of the interstate systems, (2) the relevant policies of the forum state, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (4) the protection of justified expecta-tions, (5) the basic policies underlying the particular field of law, (6) certainty, predictability, and uniformity of result, and (7) ease in the determination and application of the law to be applied.

A.

Because each state has a connection to the parties or the matter, Arizona, Texas, or Utah law could potentially apply. According to the Restatement, the objective is to apply the law of the state that has the "most significant relationship" with the parties and the dispute. See SYMEON C. SYMEONIDES, ET AL., Conflicts of Laws: American, Comparative, Interna-tional (1998). A "significant relationship " includes not only the raw number of contacts a state has with a matter, but also the importance and depth of those contacts.

Utah's connection to this dispute is minimal. Neither peti-tioner nor respondent are domiciles of, or licensed to work in, Utah. Dr. Cox's evaluation of Dr. Patton and the testimony for which he seeks immunity took place elsewhere. However, the impetus behind the evaluation came from a Utah court charged with resolving a custody dispute between Dr. Patton and his former wife. The Utah court expressly ordered Dr. Patton to see Dr. Cox in order to determine his fitness to visit his children; thus, Dr. Cox evaluated Dr. Patton in contempla-tion of testifying in a Utah court. Further, Dr. Patton expected that any information gleaned from the evaluation would only be used in the Utah proceeding. Dr. Cox's testimony became unnecessary, however, and was never given in the Utah court.

Texas's connection to the litigation is stronger than Utah's. First, Dr. Cox is domiciled and licensed to practice psychology in Texas. Second, the evaluation took place in Houston at Dr. Cox's office. Finally, it appears that Dr. Cox's promise to Dr. Patton that he would not release the results of his evalu-ation in circumstances other than the Utah child custody pro-ceeding occurred in Texas.

Arizona also has a significant relationship to the dispute. Dr. Patton is licensed to practice medicine in Arizona and has actively done so since 1996. The proceeding in which Dr. Cox gave the testimony for which he now seeks immunity took place in Arizona. Also, the impact of Dr. Cox's testimony was centered primarily in Arizona, as BOMEX placed Dr. Patton on probation for no fewer than five years, ordered him to undergo psychotherapy, and restricted his ability to treat young female patients.

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Arizona courts have extended witness immunity to quasi-judicial proceedings and pre-trial communications. See Burns v. Davis, 993 P.2d 1119 (Ariz. Ct. App. 1999); Western Techs. Inc. v. Sverdrup & Parcel, Inc., 739 P.2d 1318, 1322 (Ariz. Ct. App. 1986). Dr. Patton seems to concede that wit-ness immunity would protect Dr. Cox from a tort claim (e.g., defamation); however, he argues that the scope of immunity should not extend to breach of contract claims. Arizona courts have not apparently addressed the issue of whether witness immunity bars a claim for breach of contract against the wit-ness. Therefore, we must predict how the Arizona Supreme Court would rule in this case.

Courts have articulated the policies protected by grant-ing witnesses immunity from suits arising out of their testi-mony: the free-flow of information in a truth-finding process, see Jurgensen v. Haslinger, 692 N.E.2d 347, 350 (Ill. App. Ct. 1998) (Absolute immunity "provides complete immunity from civil action, even though the statements are made with malice, because public policy favors the free and unhindered flow of information."), encouraging witnesses to come for-ward to testify, see Briscoe v. LaHue, 460 U.S. 325, 335 (1983) ("[T]he importance of accurately resolving factual dis-putes in criminal (and civil) cases [is] such that those involved in judicial proceedings should be `given every encouragement to make a full disclosure of all pertinent information within their knowledge.' ") (quoting Imbler v. Pachtman, 424 U.S. 409, 439 (1976) (White, J., concurring in the judgment)), and curbing collateral, even vindictive, litigation, see Butz v. Economou, 438 U.S. 478, 512 (1978) ("Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.").

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Because the witness immunity privilege "originated within the limited context of defamation law," Murphy, 841 S.W.2d at 675, and "should not be extended absent the exis-tence of compelling public policy justifications, " Deathridge v. Examining Bd., 948 P.2d 828, 830 (Wash. 1997) (citation omitted), we are persuaded that the balance of policies expressed by Arizona courts is best served by declining to extend witness immunity from contract liability arising from testimony, at least to witnesses who voluntarily testify in a quasi-judicial proceeding.

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Therefore, applying our perception of Arizona law, we hold that witness immunity does not bar an action for breach of contract when, as in this case, the witness participated volun-tarily in a quasi-judicial proceeding. This ruling will not hin-der "the resolution of disputes and the ascertainment of truth," Edwards v. Centex Real Estate Corp., 61 Cal. Rptr. 2d 518, 529 (Cal. Ct. App. 1997), because witnesses can be compelled to testify as needed, which would then trigger immunity protection.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Accordingly, the district court's order granting defendant's motion to dismiss is REVERSED and the case is REMANDED to the district court for further consideration and to determine whether Dr. Michael Cox entered into and subsequently breached a contractual agreement of confidentiality with Dr. Mark Patton.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: E-mail suggested corrections, comments and/or corrections to: Kent Morlan

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